WhethEr defendaNt can START
recording of evidence
The Code of Civil Procedure is a
comprehensive code in itself with regard to procedure laid down in cases
related to civil proceedings. The filing of suit, filing of written statement,
impleadment, addition or deletion of parties, amendments in pleadings, framing
of issues and other modalities are detailed in the code and judicial precedents
emerges from time to time in case any grey area existed. The process of
evidence commences after framing of issues. By the Rule of convention as
embodied in Order 18, Rule1 of Code
of Civil Procedure the plaintiff or petitioner is required to initiate
recording of evidence and after conclusion of plaintiff evidence, the process
of recording of evidence on behalf of defendant shall commence. However, the
said rule also include a situation, when the departure to the rule is prescribed
and the defendant may be permitted to record evidence first and plaintiff may
record their evidence thereafter. As stated, this is a departure from ordinary
rule and is an exception. It is fraught with ramifications. Ordinarily, the defendant
may file application under Order 18 Rule 1 of Code of Civil Procedure for
seeking to record their evidence first. There may also be instance, though,
rare, when the plaintiff may also seek the defendant to initiate recording of evidence
and application could be filed by plaintiff to that effect. After hearing of
parties, thereafter, the order could be passed by courts. However, what is
pertinent in the context is that whether court shall have power to suo motu direct the defendant to record
evidence by defendants first? What are the circumstances of that? Whether
satisfaction of court is sufficient or there are some guidelines laid down in
this regard that needed deliberation. What the courts as a precedents have laid
down over the years, has to be analysed as well.
ORDER 18 RULE 1
Before digging deep it may be apt
to reproduce the provisions of Order 18 Rule 1 of Code of Civil Procedure:
Rule
1. "Right to begin"
The
plaintiff has the right to begin unless the defendant admits the facts alleged
by the plaintiff and contends that either in point of law or on some additional
facts alleged by the defendant the plaintiff is not entitled to any part of the
relief which he seeks, in which case the defendant has the right to begin.
DELHI HIGH COURT
The Delhi High Court in CM
(M) 282/2019 in Om Prakash Vs Amit Chaudhary & Ors was dealing with
the impugned order dated 19.11.2018, wherein the Trial Court held
that the plaintiff was not entitled to the direction sought, and that a
direction under Order XVIII Rule 1 of the CPC can be passed only on an
application made by the defendants. It was further observed that as a general
rule, the plaintiff has to prove his claim by positive proof.
In Om Prakash (Supra) the plaintiff had filed
the suit against the defendants for recovery of sum alongwith interest
thereupon on the premise that as per Collaboration Agreement between them for
development and construction of a building on the suit property the plaintiff
claimed to have paid Rs 10,00,000/- out of the agreed consideration. It was alleged
by the plaintiff that the defendants did not deliver possession of the suit
property which was, in fact, sealed by municipal authorities. Thus, refund of sum
of Rs 10,00,000/- was claimed alongwith interest and damages in the sum of Rs 15,00,000/-.
In the
written statement filed by the defendants the execution of collaboration
agreement was not disputed, but according to defendant it was not to be acted
upon and that the suit property had already been fully developed. The loan was
advanced by the plaintiff and defendant attempted to repay that but it was not
being accepted by the plaintiff. The claim of damages was thus disputed.
At this stage, the
plaintiff filed the application under Order XVIII Rule 1 of the CPC. It is
contended therein that in view of the defendants' admission regarding the
execution of the Collaboration Agreement, the defendants ought to be
directed to lead evidence first. The application was contested by the
defendants, reiterating the contents of the written statement.
The Trial Court has held
that the plaintiff was not entitled to the direction sought, and that a
direction under Order XVIII Rule 1 of the CPC can be passed only on an
application made by the defendants. It was further observed that as a general
rule, the plaintiff has to prove his claim by positive proof. In para 8 of the
Om Prakash (Supra) the High Court has held:
“ Order XVIII Rule 1 of the
CPC recognizes the general rule that the plaintiff in a suit must prove his case.
This is in consonances with Section 101 and 114 of the Indian Evidence
Act, 1872. The defendant is given "the right to begin" only in a
situation where the facts alleged by the plaintiff are admitted but the
plaintiff's entitlement to relief is contested in law or on the basis of
additional facts asserted by the defendant. The condition that the facts
pleaded by the plaintiff must be admitted by the defendant is of great
significance. It implies that the facts necessary for proving the plaintiff's
case must be entirely, or atleast very substantially, admitted by the
defendant. It is by reason of the defendant's admission that the plaintiff is
absolved from its duty to prove its case before the defendant is called upon to
give evidence. On a proper interpretation, the second part of Order XVIII
Rule 1 therefore is applicable in a situation where, but for the additional
facts pleaded or legal defences raised by the defendant, the plaintiff would
have been entitled to a decree upon admission”.
In Sabina
Sultana & Ors Vs Ahmad Aziz & Anr CS (OS) 2958/2011,
decided on 31.08.2017, the Delhi High Court has held by relying upon several authorities
that in the absence of admission of facts pleaded by the plaintiff, asking the
defendant to lead evidence first could well be disadvantageous to the
defendant. Paragraph 8 of the judgment, to that effect, is reproduced below:-
"8. In terms of the procedure stipulated in CPC and the
aforesaid precedents, it is clear that as a general rule the party which set up
a claim must prove the burden cast upon it. The plaintiff has a right to begin
and so he must because the burden of proof rests upon one who pleads. It is for
the plaintiff to lead evidence first. It is only when the defendant admits to
the facts pleaded by the plaintiff that the latter would be relieved of this
burden, but in the absence of any such admission, asking the defendant to lead
evidence first could well be disadvantageous to the defendant. Order 18 Rule 1
of CPC prescribes "right to begin" the recording of evidence wherein
the plaintiff would lead evidence first but the defendant may be permitted to
lead evidence if after having admitted to the facts pleaded by the plaintiff,
he so seeks to do. In the absence of these two qualifying circumstances, the
Court would not direct the defendant to lead evidence first."
In the judgment of Orissa
High Court in Mirza Niamat Baig vs. Sk. Abdul Sayeed, 2008(II) OLR 566, also
indicates that the facts admitted by the defendant must include all the
material facts. Paragraphs 4 of the said judgment are reproduced below:-
"4. The law is well settled that
a person who sets the law in motion and seeks a relief before the Court, must
necessarily be in a position to prove his case and get the relief moulded by
the law. The right to begin is to be determined by the rules of evidence. As a
general rule, the party on whom the burden of proof rests should begin. In no
case, the plaintiff can be allowed to take any undue advantage over the
defendant, whatever may be the position or stand the defendant takes, for the
very reason that the defendant is expected to answer the claim made by the
plaintiff in the suit. In the wording "unless the defendant admits the
facts alleged" occurring in Order 18, Rule 1, C.P.C., the word
"facts" means all the materials facts. Thus, where a defendant admits
only some of the facts alleged by the plaintiff, there the plaintiff should
begin”.
The authorities cited
in Sabiha
Sultana (supra) that the provision is an enabling one - the defendant
can choose whether to exercise the right to begin or not. Reference in this
connection may be made to the judgments of the Bombay High Court in Dattatray Namdeo Patil Vs Ram Namdeo Patil (2010)
3 Mah LJ 801, and Haran Bedi Suppliers Vs V.M & Co.
(2001) 4 Mah LJ 112, and the Patna High Court in Mohammad Jahangir vs. Sajda
Khatoon (2007) 4 PLJR 100. In the judgment of the Bombay High Court in Zainabee vs. Shivkumar (2018) 2 Mah LJ 634,
the earlier judgments of the Courts were considered and it was held that the
Court does not have the power to issue a direction to a defendant to lead
evidence first, which is reproduced below:-
"20. In Bhagirath Shankar
Somani Vs Ramesh Chandra Daulal Soni 2007 (5)
Mh.L.J. 508 : 2007 (4) ALL MR 514, this Court concluded that if the defendant
decides to lead evidence first and is so permitted by the Court, the plaintiff
can always lead evidence in rebuttal. The trial Court does not have the power
to issue a direction to the defendant compelling him to lead his evidence
before the plaintiff adduces his evidence under Order 18, Rule 1. Only when the
defendant claims a right to begin under Rule 1 and the plaintiff disputes
existence of such right, the Court will have to decide the question whether,
the defendant has acquired a right to begin”.
In Metafield
Coli Pvt Ltd Vs Nikivik Tube Industries Pvt Ltd, 2012 (1) Mh.L.J. 289,
while considering such an issue under Order 18, Rule 1, it was concluded that:
“A
consistent view taken by the Courts is that a direction against the
defendant to lead evidence before the plaintiff leads his evidence, cannot be
issued under Order 18, Rule 1. The scheme of law appears to be that of a normal
rule and it would be a privilege of the plaintiff to lead his evidence first.
However, it enables the defendant to exercise the right in the contingency
mentioned in the rule. After the plaintiff exercises his option to lead
evidence first, it is for the defendant to decide whether, he would like to
lead evidence and make such a formal request to the Court. If the Court permits
the defendant to lead evidence first, the plaintiff can always lead evidence in
rebuttal. The Court does not have the power to issue a direction to the
defendant so as to compel him to step into the witness box first and lead
evidence."
Thus what
emerges is that Order 18 of the Code of Civil Procedure would entitle the
defendant, who admits the fact, to begin the recording of his evidence first.
It is an enabling provision. If the defendant applies and makes a request or
claims such a right, the Court may pass an order permitting the defendant to
step into the witness box first.
Even the
Division Bench of Orissa High Court in Balkrishna
kar Vs H.K Mahatab, AIR 1954 Ori 191, had overturned the order of the Trial
Court placing the burden upon the defendant to lead evidence first in a
defamation suit. The Division Bench held that the admission of publication of
the allegedly defamatory articles was insufficient for this purpose as the
defendant had not admitted that the articles constituted libel on the character
of the plaintiff. It was held that in such circumstances, the onus lies on the
plaintiff to establish his case.
After
perusing the precedents, the Delhi High Court in Om Prakash (Supra) has
held that:
“Order XVIII Rule 1 was not applicable. The defendants had not
sought to exercise the right to begin which, in view of the authorities above,
is a choice for him to make and not for the plaintiff to force upon him. In any
event, the substantive condition that the facts alleged by the plaintiff must
be admitted by the defendants is also not satisfied. Merely because the
execution of the Collaboration Agreement is admitted, does not imply that the
defendants have admitted the facts alleged by the plaintiff. In contractual
disputes, it is often the case - perhaps in a majority of cases - that the
execution of the contract is admitted by the defendant, but other facts
establishing the plaintiff's claims are not. In the present case, for example,
the quantum of damages assessed by the plaintiff has been expressly and
unequivocally disputed in the written statement. It is settled law that
pleadings are to be read as a whole, and admissions cannot be considered in
isolation. Reference may be made to the judgment of the Supreme Court in Udhav Singh Vs Madhav Rao Scindia, (1977) 1
SCC 511, wherein it has been held as follows:-
"33. We are afraid, this ingenious method of construction
after compartmentalisation, dissection, segregation and inversion of the
language of the paragraph, suggested by Counsel, runs counter to the cardinal
canon of interpretation, according to which, a pleading has to be read as a
whole to ascertain its true import. It is not permissible to cull out a
sentence or a passage and to read it out of the context, in isolation”.
It is further
held that “the pleading has to be construed as it stands without addition or
subtraction of words, or change of its apparent grammatical sense. The
intention of the party concerned is to be gathered, primarily, from the
tenor and terms of his pleading taken as a whole."
The later
judgments of the Supreme Court in Sopan Sukhdeo Sable vs. Asstt. Charity
Commr. (2004) 3 SCC 137 [Paragraph 15] and Des Raj Vs Bhagat Ram (2007)
9 SCC 641 [Paragraph 17] also lay down the above principle. On a holistic
reading of the written statement filed by the defendants in the present case,
it is not possible to conclude that the defence rests on additional facts or
points of law, the facts pleaded by the plaintiff being admitted.
Conclusion
The plaintiff has the inherent right
as per the laid down procedure and as contained in Order 18 Rule 1 of Code of
Civil Procedure to initiate recording of evidence. The plaintiff has to prove
their case by standing on their leg. The rebuttal evidence thereafter shall
follow and defendants shall lead evidence to rebut. This is a normal rule of procedure.
The Order 18 Rule 1 of CPC carve out an exception, when the defendants may be
permitted to initiate the evidence, but that shall be contingent upon the fact
that defendant has admitted substantive part of the plaint and the defendant also
seeks to examine their witness first by filing an application for seeking such
permission. Even if the opposition is raised by the plaintiff, the court may
decide, if the defendant shall be entitled to lead the evidence first or not.
Therefore, what clearly emerges is that unless the admission are pervasive by defendants
and the disputes virtually does not exists and on law point only decision shall
hinge, then, defendant could be permitted to lead evidence first, not
otherwise. In a routine course and in a mechanical manner there cannot be
departure from normal rule of procedure and the plaintiff only shall have to
initiate evidence and examine witnesses on their behalf.
-----------
Anil
k Khaware
Founder
& Senior Associate
Societylawandjustice.com
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